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Victory: Constitutional Court Defends Right to Prior Consultation
On January 23, 2008, the Colombian Constitutional Court declared the Forest Law of 2006 to be unconstitutional and therefore, invalid, because lawmakers did not consult with indigenous, afrodescendant, and tribal communities during development of the law as required.
This decision is an advance for these Colombian communities who view many economic development projects and policies as a threat to their traditional territory and cultural identity, as well as the environment. The ruling also establishes a valuable legal precedent that can be used to bolster indigenous and tribal communities’ rights in other legal cases throughout the Americas.
The Colombian government is required by law to consult with indigenous and tribal communities regarding administrative and legislative decisions that may affect them. It is obligated to do so because the Colombian Congress previously adopted into law “Convention 169,” a treaty of the International Labour Organization that protects this right and others.
In this case, the Court decided that indigenous and tribal communities should have been consulted because the Forest Law regulates forest issues in general terms, and contains provisions that “will likely affect areas generally used by the communities, which could impact their lifestyles and their close relationships with the forests.”
The court also declared that the requirement to consult with indigenous and traditional communities cannot be replaced with the general public participation process that the government carried out regarding the Forest bill. Rather, to comply with the law, the government should inform the communities about the proposed law, explain its implications and how it could affect them, and give them opportunities to effectively state their opinions regarding the bill.
As a result of this court ruling and civil society’s call to respect the right to prior and informed consultation, the Colombian government proposed a law to regulate and enforce this fundamental right. The Ministry of Agriculture also began developing a new forest law, this time using a process that complies with prior and informed consent procedures.
The lawsuit was brought by a group of students and professors from the University of Los Andes Law School in Bogota with the support of AIDA. Social organizations including the Proceso de Comunidades Negras, the National Indigenous Organization of Colombia (ONIC) and CENSAT Agua Viva also supported the group in presenting this case.
This group also filed a second lawsuit against the Forest Law alleging that the law violated Constitutional provisions protecting the environment. However, because of the January court decision, no decision will be made on this second suit.
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Climate Marchers to Global Leaders: No dirty energy in the Green Climate Fund
New York, NY – As world leaders prepared to announce pledges of climate action and money for the Green Climate Fund, thousands of people flooded the streets of New York City yesterday demanding a financial commitment to clean energy and climate-resilient solutions. Heads of state are gathering at the United Nations tomorrow, at the invitation of UN Secretary General Ban Ki-Moon, in an attempt to jump-start negotiations for a new global climate deal. According to Janet Redman, climate policy director at the Institute for Policy Studies, “Reaching an agreement to stabilize the climate rests on developed countries making good on their promises. Contributions to the Green Climate Fund are past due. We need to see serious commitments from our governments to deliver financing for low-carbon, climate-friendly development now.” Andrea Rodríguez, Mexico-based legal advisor for the climate change program of the Interamerican Association for Environmental Defense (AIDA), added, “Billions of people still lack access to energy. The Green Climate Fund should support communities to meet that need through truly clean, decentralized, sustainable renewable energy. Despite the interest from various sectors in promoting carbon capture, natural gas, and large dams as climate solutions, this institution should not provide financial support for any project that emits greenhouse gas pollution.” The policies established by the Fund's 24 board members, from both developed and developing countries, have so far not excluded any energy sector from receiving finance, increasing the risk that dirty projects could ultimately receive support. “Dirty energy is more than fossil fuels,” noted Zachary Hurwitz, a consultant for International Rivers. “Hydropower dams can release methane, they can destroy carbon-sequestering forests, and they can displace thousands of people. And there’s nothing clean about the human rights violations that all too often result.” Lidy Nacpil, director of Jubilee South Asia Pacific Movement on Debt and Development, based in the Philippines, said, “In my country, we’re already facing the devastation of climate change. Wealthy industrialized countries have a legal and moral obligation to repay their climate debt and support adaptation through the Green Climate Fund. But that’s not enough. The fund must not exacerbate climate change and its impacts by financing dirty energy.” Additional information: Read the latest commentary from the Institute for Policy Studies on the Green Climate Fund. Read the Global South Position Statement on the Green Climate Fund. Read the open letter to governments, international institutions and financial mechanisms to stop considering large dams as clean energy and to implement real solutions to climate change.
Read moreClimate Marchers to Global Leaders: No dirty energy in the Green Climate Fund
New York, NY – As world leaders prepared to announce pledges of climate action and money for the Green Climate Fund, thousands of people flooded the streets of New York City yesterday demanding a financial commitment to clean energy and climate-resilient solutions. Heads of state are gathering at the United Nations tomorrow, at the invitation of UN Secretary General Ban Ki-Moon, in an attempt to jump-start negotiations for a new global climate deal. According to Janet Redman, climate policy director at the Institute for Policy Studies, “Reaching an agreement to stabilize the climate rests on developed countries making good on their promises. Contributions to the Green Climate Fund are past due. We need to see serious commitments from our governments to deliver financing for low-carbon, climate-friendly development now.” Andrea Rodríguez, Mexico-based legal advisor for the climate change program of the Interamerican Association for Environmental Defense (AIDA), added, “Billions of people still lack access to energy. The Green Climate Fund should support communities to meet that need through truly clean, decentralized, sustainable renewable energy. Despite the interest from various sectors in promoting carbon capture, natural gas, and large dams as climate solutions, this institution should not provide financial support for any project that emits greenhouse gas pollution.” The policies established by the Fund's 24 board members, from both developed and developing countries, have so far not excluded any energy sector from receiving finance, increasing the risk that dirty projects could ultimately receive support. “Dirty energy is more than fossil fuels,” noted Zachary Hurwitz, a consultant for International Rivers. “Hydropower dams can release methane, they can destroy carbon-sequestering forests, and they can displace thousands of people. And there’s nothing clean about the human rights violations that all too often result.” Lidy Nacpil, director of Jubilee South Asia Pacific Movement on Debt and Development, based in the Philippines, said, “In my country, we’re already facing the devastation of climate change. Wealthy industrialized countries have a legal and moral obligation to repay their climate debt and support adaptation through the Green Climate Fund. But that’s not enough. The fund must not exacerbate climate change and its impacts by financing dirty energy.” Additional information: Read the latest commentary from the Institute for Policy Studies on the Green Climate Fund. Read the Global South Position Statement on the Green Climate Fund. Read the open letter to governments, international institutions and financial mechanisms to stop considering large dams as clean energy and to implement real solutions to climate change.
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"We want the Green Climate Fund to follow the rules of procedure it has adopted"
AIDA attended the Latin American Carbon Forum 2014 in Bogotá, Colombia. There, our lawyer Andrea Rodríguez participated as a representative of civil society in a panel on the Green Climate Fund (GCF), a mechanism that will mobilize large amounts of resources to support adaptation and mitigation of climate change. Andrea answers a series of questions about the current situation and prospects of the GCF. - What are civil society’s expectations for the Fund? - We have the same expectations as the Fund. We want it to be a transparent, inclusive institution that is constant learning, as stated in Article 3 of its governing instrument. Its focus has to be driven by each country’s determination of what priorities should be funded. It must balance funding for adaptation and mitigation of climate change. We expect the Fund to promote social, environmental, economic, and development co-benefits and taking a gender sensitive approach; men and women are affected to the same degree by climate change. In short, we want the Green Climate Fund to follow the rules of procedure it has adopted. - How can a balance in funding for mitigation and adaptation be ensured? - Financing is given mostly for mitigation projects, despite the great need to fund projects for adaptation to climate change. In Bali, Indonesia, during the penultimate meeting of the Fund’s Board, it was decided that 50% of the funding will go to mitigation and 50% for adaptation. That decision was made and we must ensure that it is followed. Furthermore, in Latin America, development plans and climate change strategies that have been advanced have set adaptation financing as a priority. - How should civil society involve itself in the Fund? - We must go beyond design to implementation. The Fund's governing instrument provides in Article 71 that the Board needs to develop mechanisms to promote the participation of all stakeholders (vulnerable groups, women, civil society and indigenous groups) in the design, development and implementation of projects and programs financed by the Green Climate Fund. There is a mandate for civil society in all stages. The issue is relevant because the Fund will become operational soon and will have to create these participatory mechanisms at the national level, particularly when countries begin to name their national designated authorities (those that collateralize the projects or activities financed by the Fund). It needs to institutionalize these participatory processes. - How can one measure the effectiveness of a project to be funded? - The definition of indicators will be among the topics discussed at the next meeting of the GCF Board, but some are particularly important. In adaptation, we need to consider whether a project can help reduce the vulnerability of a community to climate change. As for mitigation, you have to measure the amount of emissions reduced. But the most important aspect is to measure co-benefits that a project or activity can generate: if it creates jobs, improves people’s quality of life, etc. This is because the Green Climate Fund aims to contribute to a paradigm shift that promotes sustainable development. Helping to improve quality of life is a change of this nature. Many times, projects that have positive climate benefits generate social, environmental, and economic problems. So it is essential that additional benefits are evident in social, environmental, and economic terms.
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